This week saw the government publish the revised NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013. These regulations revoke the version published on 13 February which prompted concerns that the government had reneged on its assurances given by ministers during the passage of the Bill through Parliament that commissioners would be free to decide which services to tender.

But do the changes to the controversial secondary legislation covering the contracting out of NHS services really change anything:

  • Commissioners must tender services unless this means there is only a single provider that is capable of providing the services.
  • The regulations confirm that Monitor – the regulator of the healthcare sector, has no power to force the competitive tendering of services – it is for CCGs to decide how and when to run a competitive tender for a contract. However, if a CCG does not run a tender and enters into a contract, and following a complaint, Monitor declares the contract ineffective, the CCG will have little choice but to run a tender.
  • Commissioners must not engage in anti-competitive behaviour unless it “is in the interests of people who use health care services for the purposes of the NHS”. These interests may include “services being provided in an integrated way (including with other health care services, health-related services, or social care services); or by co-operation between the persons who provide the services in order to improve the quality of the services”. This does not, though, sit comfortably alongside regulations 3(3) which requires commissioners to “procure services from one or more providers that are most capable of delivering the objective referred to in regulation 2 in relation to the services, and provide best value for money in doing so.” An integrated service may achieve the commissioners’ objective but a private provider may provide the services at a lower price

Commissioners are advised to develop a clear procurement strategy that incorporates the challenges of the “revised regulations”.

The revised regulations were laid before Parliament on 11 March 2013 and come into force on 1 April 2013.